Exhibit 10.1


 


LIMITED WAIVER AND SECOND AMENDMENT
TO LOAN AGREEMENT 


 


THIS LIMITED WAIVER
AND SECOND AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is entered into as of December 28, 2016 (the
“Amendment Date”), between AMERIS BANCORP, a Georgia corporation (“Borrower”),
and NEXBANK SSB (“Lender”).


 


R E C I T A L S


 


A.       Borrower
and Lender are parties to that certain Loan Agreement dated as of August 28, 2013 (as heretofore amended and as it may be further
amended, modified, supplemented, restated or amended and restated from time to time, the “Loan Agreement”).
Unless otherwise indicated herein, all terms used with their initial letter capitalized are used herein with their meaning as defined
in the Loan Agreement and all Section references are to Sections in the Loan Agreement.


 


B.       The
Bank was out of compliance with its Total Risk-Based Capital Ratio requirement under Section 11.10 of the Loan Agreement as of
the last day of each of the fiscal quarters ending March 31, 2016, June 30, 2016 and September 30, 2016 (collectively, the “2016
TRBC Ratio Requirements”).


 


C.       Borrower
has requested that Lender, and Lender has agreed to, (i) waive the 2016 TRBC Ratio Requirements, subject to the terms and conditions
set forth in this Amendment, and (ii) amend the Loan Agreement and Note to, among other things, increase the Commitment and reduce
the Total Risk-Based Capital Ratio required of the Bank.


 


D.       Borrower
and Lender desire to amend the Loan Documents, subject to the terms, conditions, and representations set forth herein, as requested
by Borrower.


 


E.       Borrower
and Lender agree to the other terms and provisions provided below, subject to the terms, conditions, and representations set forth
herein.


 


NOW, THEREFORE, in
consideration of these premises and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree, as follows:


 


		1.	Limited Waiver. Subject to the terms set forth herein, and the timely satisfaction of each
of the conditions precedent in Section 3 of this Amendment, the Lender hereby waives the 2016 TRBC Ratio Requirements.



 


		2.	Amendments to Loan Agreement. Subject to the satisfaction of the conditions set forth herein,
the Loan Agreement is amended as follows:



 


(a)       Section
A of the Recitals is hereby amended and restated in its entirety to read as follows:


 


A. Borrower has applied to Lender
for a revolving loan in the amount of up to $60,000,000, and Lender is willing to make the Loan on the terms and conditions hereinafter
set forth.


 


(b)       The
following definitions in Section 2.1 of the Loan Agreement are hereby amended and restated in their entirety to read as
follows:


 


Commitment: The obligation
of Lender to make Revolving Credit Advances pursuant to Section 4.1 in an aggregate principal amount at any time outstanding
up to but not exceeding $60,000,000, subject, however, to termination pursuant to Article XVI.


 






     


     


    

 


(c)       Section
11.10 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:


 


11.10 Total Risk-Based Capital
Ratio.


 


The Bank shall cause to be maintained
as of the last day of each period in the table below, the Total Risk-Based Capital Ratio as set forth in the table below for such
period:


 


	Period	Total Risk-Based Capital Ratio
	As of December 31, 2016, for the fiscal quarter then ending	10.5% or greater
	As of March 31, 2017, for the fiscal quarter then ending	10.5% or greater
	As of June 30, 2017, for the fiscal quarter then ending	10.5% or greater
	As of September 30, 2017 and as of last day of each fiscal quarter thereafter, for the fiscal quarter then ending	11.0% or greater


  


(d)       Section
2(D) of Exhibit A (Certificate of Compliance) to the Loan Agreement is hereby amended and restated in its entirety to read as follows:


 


D. Covenant: Total Risk-Based
Capital Ratio as set forth in the Loan Agreement tested quarterly.


 


Calculation:


 


Total Risk-Based Capital Ratio = (Tier 1 Capital
+ Tier 2 Capital) / Total Risk-Weighted Assets


 


Total Risk-Based Capital Ratio of                                                                                for period
ending                                                         .


 


[Borrower to include specific calculation based
upon formula outlined in Agreement]


 


Compliance? (Yes or No)                                                                                                                                                             


 


		3.	Conditions Precedent. Notwithstanding any contrary provision, this Amendment shall be effective
on the first Business Day upon which all of the following conditions precedent have been satisfied (the “Effective
Date”):



 


(a)       
Lender shall have received counterparts of this Amendment executed by Borrower, Lender, and each other party set forth on the signature
pages hereto;


 






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(b)       Lender
shall have received the Second Amended and Restated Revolving Promissory Note dated as of the Effective Date in the original principal
amount of $60,000,000 executed by Borrower and payable to the order of Lender (the “Second Amended and Restated
Note”);


 


(c)       Lender
shall have received satisfactory evidence that the representations and warranties contained in the Loan Agreement and in the other
Loan Documents, after giving effect to the terms of this Amendment, shall be true and correct in all material respects on and as
of the Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date;


 


(d)       Lender
shall have received satisfactory evidence that Borrower has paid the fees and expenses of counsel described in Section 6
hereof and Article VII of the Loan Agreement;


 


(e)       After
giving effect to the terms of this Amendment, no Default or Event of Default shall have occurred and be continuing or shall result
after giving effect to this Amendment or the Second Amended and Restated Note;


 


(f)       Lender
shall have received an officer’s certificate, together with all attachments and exhibits thereto, duly executed and delivered
by a duly authorized officer of the Borrower;


 


(g)       Lender
shall have received a favorable written opinion of Rogers & Hardin LLP, counsel to Borrower, covering such matters as the Lender
may reasonably request (and the Borrower hereby instructs such counsel to deliver such opinions to the Lender); and


 


(h)       Lender
shall have received such other instruments and documents incidental and appropriate to the transactions provided for herein as
Lender or its counsel may reasonably request, and all such documents shall be in form and substance satisfactory to Lender (it
being agreed that execution of this Amendment by Lender shall evidence that the foregoing conditions have been fulfilled).


 


		4.	Reaffirmation of Loan Documents and Liens. Except as amended and modified hereby, any and
all of the terms and provisions of the Loan Agreement and the other Loan Documents shall remain in full force and effect and are
hereby in all respects ratified and confirmed by Borrower. Borrower hereby agrees that, except as expressly provided in this Amendment,
the amendments and modifications herein contained shall in no manner affect or impair the liabilities, duties and obligations of
Borrower under the Loan Agreement and the other Loan Documents or the Liens securing the payment and performance thereof. Borrower
further confirms that the liens and security interests in the Collateral created under the Loan Documents secure, among other indebtedness,
Borrower’s obligations under the Loan Documents, and all modifications, amendments, renewals, extensions, and restatements
thereof.



 


		5.	Representations and Warranties. As a material inducement for Lender to enter into
this Amendment, Borrower hereby represents and warrants to Lender (with the knowledge and intent that Lender is relying upon the
same in consenting to this Amendment) that as of the Effective Date, and after giving effect to the transactions contemplated by
this Amendment: (a) all representations and warranties in the Loan Agreement and in all other Loan Documents are true and correct
in all material respects, as though made on the date hereof, except to the extent that (i) any of them speak to a different
specific date or may have otherwise been made inaccurate by the mere passage of time; or (ii) the facts or circumstances on
which any of them were based have been changed by transactions or events not prohibited by the Loan Documents; (b) no Default
or Event of Default exists under the Loan Documents or will exist after giving effect to this Amendment; (c) this Amendment
has been duly authorized and approved by all necessary organizational action and requires the consent of no other Person, and is
binding and enforceable against Borrower in accordance with its terms; and (d) the execution, delivery and performance of
this Amendment in accordance with its terms, does not and will not, by the passage of time, the giving of notice, or otherwise:
(i) require any governmental approval, other than such as have been obtained and are in full force and effect, or violate
any applicable law relating to Borrower; (ii) conflict with, result in a breach of, or constitute a default under the Constituent
Documents of Borrower thereof, or any indenture, agreement, or other instrument to which Borrower is a party or by which it or
any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect
to any property now owned or hereafter acquired by Borrower.



 






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		6.	Costs and Expenses. Borrower agrees to pay promptly the reasonable fees and expenses of
counsel to Lender for services rendered in connection with the preparation, negotiation, reproduction, execution and delivery of
this Amendment and all related documents.



 


		7.	Miscellaneous.



 


		(a)	This Amendment and the Second Amended and Restated Note shall be deemed to constitute a Loan Document
for all purposes and in all respects. Each reference in the Loan Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of like import, and each reference in the Loan Agreement or in any other Loan
Document, or other agreements, documents or other instruments executed and delivered pursuant to the Loan Agreement to the “Loan
Agreement”, shall mean and be a reference to the Loan Agreement as amended by this Amendment.



 


		(b)	The Loan Documents shall remain unchanged and in full force and effect, except as provided in this
Amendment and the Second Amended and Restated Note, and are hereby ratified and confirmed. The execution, delivery, and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power, or remedy of Lender
under any Loan Document, nor constitute a waiver under any of the Loan Documents.



 


		(c)	All of the terms and provisions of this Amendment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.



 


		(d)	This Amendment may be executed in one or more counterparts and by different parties hereto in separate
counterparts each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to
a single counterpart so that all signature pages are physically attached to the same document. Delivery of photocopies of the signature
pages to this Amendment by facsimile or electronic mail shall be effective as delivery of manually executed counterparts of this
Amendment.



 


		(e)	THIS AMENDMENT, THE LOAN AGREEMENT, THE SECOND AMENDED AND RESTATED NOTE AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



 






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		(f)	The headings, captions and arrangements used in this Amendment are, unless specified otherwise,
for convenience only and shall not be deemed to limit, amplify or modify the terms of this Amendment, nor affect the meaning thereof.



 


		(g)	Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other jurisdiction.



 


		(h)	This Amendment shall be construed in accordance with and governed by the laws of the State of Texas.



 


[Remainder of Page Intentionally Left
Blank; Signature Pages Follow.]


 




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IN WITNESS WHEREOF,
the parties hereto have executed this Amendment in multiple counterparts to be effective as of date first set forth above.


 


	 	BORROWER:	 
	 	 	 	 
	 	AMERIS BANCORP,	 
	 	a Georgia corporation	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Edwin W. Hortman, Jr.	 
	 	 	Name: Edwin W. Hortman, Jr.	 
	 	 	Title: President and CEO	 




 




     

     


    

 





		LENDER:	 
	 	 	 	 
	 	NEXBANK SSB	 
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Rhett Miller	 
	 	 	Rhett Miller, SVP and Chief Credit Officer